Henry McCone v. City of Orlando

Case: 11-14103 Date Filed: 11/15/2012 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 11-14103
Non-Argument Calendar
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D.C. Docket No. 6:11-cv-01047-MSS-DAB

HENRY MCCONE,

Plaintiff-Appellant,

versus

CITY OF ORLANDO,
a municipal corporation and political
subdivision of the State of Florida,
SCOTT ZOLLARS,
individually and in his official capacity,
CB RICHARD ELLIS, INC.,
NATALIE LALL,
individually and as an agent and
employee of CB Richard Ellis, Inc.,
ROM POWELL,
JANET THORPE,
REGINALD WHITEHEAD,
individually and in their official capacities,

Defendants-Appellees.
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________________________

Appeal from the United States District Court
for the Middle District of Florida
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(November 15, 2012)

Before BARKETT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Henry McCone appeals pro se the dismissal sua sponte of his complaint

about the violation of his civil rights by the City of Orlando; Scott Zollars, the

chief of the City parking bureau; CB Richard Ellis, Inc., a commercial building

manager; Natalie Lall, an employee of Ellis; and Rom Powell, Janet Thorpe, and

Reginald Whitehead, three judges of the Circuit Court of Orange County, Florida.

42 U.S.C. § 1983. We affirm.

McCone’s complaint stemmed from his receipt of four traffic citations for

violating a municipal ordinance that prohibited parking in a space with an expired

parking meter. See Orlando, Fla., Code § 39.45. McCone contested the citations.

An officer of the City parking bureau held a hearing on one citation and found

McCone guilty of the parking offense, but an official vacated the decision for the

citation to be adjudicated before a judge. After another hearing officer

consolidated McCone’s three other citations and adjudicated him guilty of the

parking offenses, McCone appealed. The Circuit Court of Orange County reversed

two of McCone’s adjudications, but affirmed his third adjudication. McCone then

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petitioned the Fifth District Court of Appeals for a writ of certiorari, which the

court denied. Dissatisfied with that decision, McCone intended to “file[] in the 5th

[District Court] [a] motion for rehearing, rehearing en banc, request for written

opinion, and certification of conflict.”

McCone sought monetary and injunctive relief from the defendants on the

grounds that they had violated his rights of due process and equal protection by

prosecuting the citations, denied him access to the traffic courts to appeal the

decisions, and retaliated after he exercised his right to appeal. He alleged that the

City could not prove that he had violated the parking ordinance; the City and

Zollar had “abus[ed] the process and engag[ed] in extortion” when they prosecuted

McCone’s citations; and Ellis, Lall, and the City had revoked McCone’s parking

permit because he challenged the citations in the traffic court. McCone also

alleged that a City official refused initially to file a form required to contest the

citations, but McCone also alleged that the official later submitted the form to the

traffic court. McCone attached to his complaint copies of his parking citations and

his correspondence with City officials, the decision of the Circuit Court of Orange

County, and partial transcripts of hearings before officers of the parking bureau.

McCone moved to proceed as an indigent.

A magistrate judge recommended that the district court deny McCone’s

motion to proceed in forma pauperis and dismiss McCone’s complaint. The

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magistrate judge concluded that McCone could not obtain “review of the judgment

entered in the state court concerning his parking citations” because “the state court

decisions [were] not final” and, “[e]ven if the judgments were final, the Court

[lacked] jurisdiction to review or overturn state court judgments adverse to

[McCone].” See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303

(1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923). In the

alternative, the magistrate judge concluded that McCone failed to state a claim

because the penalties that McCone faced did not implicate a constitutional right;

the state court judges were entitled to absolute immunity; and McCone had failed

to establish that Ellis and Lall were state actors.

The district court adopted the recommendation of the magistrate judge “in

all respects” and dismissed McCone’s complaint. The district court ruled that

McCone’s claims involving his prosecution for parking offenses were barred under

the Rooker-Feldman doctrine and that McCone’s claims against Ellis and Lall were

“barred by the state actor requirement.” The district court also ruled that

McCone’s claim “against judges . . . for the conduct of their judicial functions

[was] . . . barred by the doctrine of absolute immunity.”

We review de novo the dismissal of a complaint for lack of subject-matter

jurisdiction, Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009), and for

failure to state a claim, Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.1997).

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We also review de novo the grant of judicial immunity. Smith v. Shook, 237 F.3d

1322, 1325 (11th Cir. 2001). “We may affirm the district court’s judgment on any

ground that appears in the record, whether or not that ground was relied upon or

even considered by the court below.” Powers v. United States, 996 F.2d 1121,

1123–24 (11th Cir. 1993).

The district court correctly dismissed McCone’s complaint. McCone sought

to overturn a decision of the state courts finding him guilty of one parking offense

and to thwart prosecution of a second similar offense, but comity required that the

district court abstain from interfering with McCone’s ongoing proceedings in the

state court. See Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971); The News-

Journal Corp. v. Foxman, 939 F.2d 1499, 1510 n.13 (11th Cir. 1991). The district

court could not grant McCone relief against the three state court judges because an

injunction would have interfered with the judicial function of the state courts, see

Wexler v. Lepore, 385 F.3d 1336, 1339, 1341 (11th Cir. 2004), and because the

judges were immune from McCone’s claim for damages, see Sibley v. Lando, 437

F.3d 1067, 1071 (11th Cir. 2005). McCone lacked standing to seek relief for being

denied access to the courts because he was permitted to challenge his citations in

the traffic court. See Jackson v. State Bd. of Pardons and Paroles, 331 F.3d 790,

797 (11th Cir. 2003). And McCone failed to state a claim that Ellis and Lall acted

under color of state law when they revoked McCone’s parking permit. See Focus

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on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir.

2003). The correspondence attached to McCone’s complaint established that Ellis

decided unilaterally to revoke the parking permit because it did not want to

jeopardize its lease with the City.

We AFFIRM the dismissal of McCone’s complaint.

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